M. NAEEMULLAH KHAN SHERWANI, J.- Badshah Khan alias Basfia son of Muhammad Akram Khan, was tried by learned Sessions Judge, Mianwali for committing lactation of Mst. Halima Bibi, wife of Muhammad Shafi. By virtue of his judgment dated 9.S.1998, the learned trial Judge found him guilty of the said charge, convicted him under section 302(b), Cr.P.C. and sentenced him to death with further direction to pay Rs. 1,00,000/- to legal heirs of the deceased by way of compensation as envisaged by the relevant provisions of section 544-A, Cr.P.C, or in default thereof it would be the liability against his person and property.
2. Murder Reference No. 256 of 1998 seeks confirmation of the said sentence of death awarded to Badshah Khan-convict whereas he has approached this Court through Jail by filing Criminal Appeal No. 151 of 1998 to call in question conviction and sentence passed against him by the said learned Judge. We propose to dispose of both the matters together through this single judgment.
3. Occurrence of the alleged incident took place on 27.10.1996 at 9.30 a.m. Within the revenue estate of village Manda Khel situate at a distance of six kilometres from Police Station Qamar Masani, District Mianwali. The said occurrence was reported by Muhammad Shafi if complainant PW-6, husband of Mst. Halima Bibi deceased, Muhammad Aslam, Sub-inspector/SHO PW-10 at the police Station, who himself drew up FIR Exh.PD correctly as per dictation of the complainant on the same day at 10.00 am.
4 Version opted by Muhammad Shafi complainant PW-6 as revealed through contents of the first information report can be summarized like this:- He is resident of Mandokhel District Mianwali. He is serving as a teacher in Public Oxford School Kamar Massani. On the fateful day he along with Manzoor Hussain, Mst. Halima Bibi, Mst. Kalsoom Bibi was available at Bus Stand Khel in order to catch a bus for Qamar Massani. His wife Mst. Halima Bibi and brother's wife Mst. Kalsoom Bibi were wearing veils but their fates were naked. During this period Badshah Khan alias Basha while armed with a 12 bore pistol arrived there. While exerting a Lalkara he addressed Mst. Halima Bibi that he was there to take revenge of insult which she meted out to him a day earlier. Lalkara was immediately followed by a pistol shot, which hit her right scapular region. Consequent upon receipt of this injury, she fell prone. Complainant with the assistance of Manzoor Hussain and Mst. Kalsoom Bibi not only raised commotion but also endeavored to apprehend Badshah Khan. He while wielding pistol in his right hand lamented The witnesses attended to the victim of assault but she succumbed to her injuries at the spot.
This event came into being because a day earlier Badshah Khan uttered indecent words to Mst.
Farah Hashmi, nice of the complainant. Mst. Halima Bibi felt annoyed over this situation and scolded Badshah Khan. Badshah Khan avenged his insult in this manner. Leaving Manzoor Hussain and Mst. Kalsoom Bibi at the spot to guard against the dead-body, he set out for the police station to set the police machinery into motion by getting the above-said case registered against the appellant.
5 After registration of the above said crime report, Muhammad. Aslam SI/SHO PW-10 immediately took the uphill task of investigation, proceeded to the venue of occurrence, inspected the same and prepared rough site plan thereof Exh. PE. Then he inspected dead-body of Mst. Halima Bibi, prepared its injury statement Exh.PF, inquest report Exh. PG and dispatched the same to the mortuary for the purpose of autopsy under the escort of Zareen Khan, Constable (PW-4). He collected blood-stained soil from the spot, made Exh.PE, duly attested by Muhammad Shafi complainant (PW-6) and Mst. Kalsoom Bibi (PW) not produced. The appellant could be arrested by him on 4.11.1996. He was subjected to interrogation, during course of which he got recovered pistol 12 bore (P6) along with two live cartridges (P7/1-2) from his residential house. The investigator took the same into possession and prepared seizure memo. Exh.PJ, duly attested by Muhammad Saqlain, ASI thereof He got prepared site plans of the place of occurrence in duplicate Exhs PA & PA/1 from Mehr Khan, Patwari (PW-1) He examined all the relevant witnesses under section 161, Cr.P.C prepared challan against the appellant and submitted the same before the Court for his trial in accordance with law.
6. The Trial Court after observing all the legal formalities proceeded to frame charge against the appellant, which was explained and read over to him. He pleaded not guilty to the same and claimed to be tried as such.
7. Lt was in these circumstances that , the prosecution was called upon to adduce evidence to establish charge against the appellant, ln compliance of the said direction, the prosecution ventured to produce as many as ten witnesses.
8. Most prominent of all these witnesses are Dr. Muhammad Ashfaq Sheikh, Muhammad Shafi complainant (PW-6), Manzoor Hussain (PW-7), Mst. Farah Hashmi P(W- 8) and Muhammad Saqlain Shah AS1 (PW-9).
PW-3 Dr. Muhammad Ashfaq Sheikh conducted postmortem examination on dead-body of Mst.
Halima Bibi and observed three injuries on her body. According to him, the deceased died due to hemorrhage and shock, resulting from injuries Nos/1 and 2, which were sufficient to cause death in the ordinary course of nature. He prepared postmortem examination report Exh.PB and pictorial diagram Exh.PB/1.
Muhammad Shafi complainant (PW-6) and Manzoor Hussain (PW-7) appeared as eye-witnesses of the occurrence. They in a nutshell reiterated the contents of the FIR. They implicated fully the accused and confirmed the parts played by him during the course of incident.
Mst. Farah Hashmi (PW-8) appeared to prove motive part of the occurrence.
Muhammad Saqlain, AS1 (PW-9) testified to the factum of recovery of pistol (P6) at the instance of the appellant.
Evidence of remaining witnesses is Of formal nature, so their statements do not require to be brought under discussion.
9. Learned prosecutor gave up remaining witnesses as being unnecessary and after tendering in evidence report of the Chemical Examiner Exh.PK and that of Serologist Exh.PL declared the prosecution case close.
10. The appellant was then examined under section 342, Cr.P.C, to enable him to offer handsome explanation with regard to his involvement in the case. He proclaimed his absolute innocence in the matter. While answering question "Why this case against you and why the PWs have deposed against you?", he stated as under:- "Mst. Farah Hashmi, PW is a- loose girl. She developed illicit intimacy with her co-villager Muhammad Yousaf: My sister's house is adjacent to the house of Mst. Farah Hashmi, PW. I took serious note of the immoral activities of Mst. Farah Hashmi, PW and aforesaid Muhammad Yousaf being carried out in the neighborhood of my sister. A few days . Before this occurrence, I saw Muhammad Yousaf coming out of the house of Mst. Farah Hashmi PW. I held him and reprimanded him, upon which a scuffle took place between the two. During the struggle a photograph of Mst.
Farah Hashmi and Yousaf (Exh.DA) fell down and I picked up the same: I told the complainant Muhammad Shafi about the immoral activities of his brother's daughter Mst. Farah Hashmi to his annoyance. Mst. Halima forbade aforesaid Muhammad Yousaf, time and again from hurdle in the way of Muhammad Yousaf, therefore, he killed her. The complainant was annoyed with me and he substituted myself for Muhammad Yousaf.
He opted not to make statement on oath as envisaged by the relevant provisions of section 340(2), Cr.P.C, in disproof of accusation brought against him. He opted to produce evidence in defence and got examined Malik Ghulam Rasool, Maulvi Muhammad Sadiq and Maulvi Ahmad Din, as DWs 1 to 3.
11. After fullest evaluation of facts and circumstances revolving around the matter, the learned Trial Judge pronounced verdict of guilt against the appellant and punished him as afore-mentioned.
12. Learned counsel for the appellant while canvassing acquittal in favour of the appellant submits that Muhammad Shafi Complainant (PW-6), Manzoor Hussain (PW-7) and Mst. Kalsoom Bibi (a given up PW) are not only related inter se but also related to the ^deceased. Their presence at the spot is doubtful; that motive is not proved; that no empty was recovered by the police from the spot and there is no positive proof of the fact that Carbine (P6) was actually used by the appellant for killing the deceased; that recovery witnesses happen to be police officials that only Muhammad Saqlain, ASI prepared as PW-9. This recovery has no evidentiary value; that actually Mst. Halima was killed by Muhammad Yousaf a paramour of Mst. Farah Hashmi, notice of the complainant.
Appellant objected to the frequent visits of Muhammad Yousaf ,in the house of Mst. Farah Hashmi.
Even few days earlier to the occurrence he bad a quarrel with Muhammad Yousaf and photograph of Mst. Farah Hashmi and Muhammad Yousaf in possession of Muhammad Yousaf fell down during the scuffle. Appellant picked up the photograph and complained against nefarious activities of Muhammad Yousaf to Muhammad Shaft The deceased forbade Muhammad Yousaf to see Farah Hashmi. Muhammad Yousaf considered Mst. Halima a big hurdle of his way in his love affair with Mst. Farah Hashmi. He exterminated her and for that reason appellant has been substituted for Muhammad Yousaf, the actual killer. He prays for his clean acquittal.
13. Conversely, learned counsel appearing on behalf of the State submits that name of the appellant is mentioned in the FIR. He fired at the deceased with 12 bore pistol, which consumed her life instantaneously. Prosecution witnesses were present at the spot and it is for this reason that FIR was lodged with great promptitude, lt is not a case of substitution. He supports judgment of the Trial Court.
14 We have with full responsibility averted to the arguments addressed by learned counsel for the parties and considered the same. We have also gone through the relevant evidence with the able assistance of learned counsel for the appellant. Our whole quantum of analysis of facts and circumstances revolving around this matter tells that there Is no dispute with regard to material facts of the case. Date, time add place of occurrence are admitted facts. We have to see. Whether the witnesses were available at the spot and had reason to be there, and did see the occurrence.
We would address our answers to these questions, 'ln this case occurrence fod place at 9.30 p.m.
Qt Bus Stand Khel, situate at a distance of six kilometres from Police Station Qamar Massani.
Muhammad Shafi complainant (PW-6), Manzoor Hussain (PW-7) who is his wife's brother and Kalsoom Bibi his brother's wife were available at the said bus stand.. They 'had to catch a bus bound for Qamar Massani. No body had come forward to refute this that occurrence had not taken place at this site, ft is a daytime occurrence: Complainant without further loss of time rushed to the Police Station within half an hour and set the police functionaries into, Motion by getting crime report No. 172/1996 'registered on", that very day. Spontaneous registration of case is sufficient to presure fhat the complainant side had no time to counsel with any one to. Engineer story in the present form. No doubt witnesses' are related and for this reason their utmost desire would be to attribute to killing only to the actual culprit and to none else. At .The witnesses had no relationship or friendly ties with Muhammad Yousaf, so there was -no earthy reason with4 them to spare hirn.
The witnesses had no reason to wrongly involve the appellant in this case. No husband would like to spare the murderer of his wife and this brings us to conclude that witnesses were available ait the spot! They had- the definite reason to be there. Their post eyen conduct was quite natural. No embroidery, was done by them in the actual story. To us story is genuine and FIR is legitimate,
15. The ideally specific part assigned to the appellant is by all means confirmed by the medical evidence. Appellant fired only one shot and" we know unless the carbine is reloaded, the spent cartridge empty would not be ejected out from the chamber of the weapon, so in this way we explain the non seizure of spent cartridge from the spot.
16. As regards plea of appellant, we have X-rayed the same. This plea is absurd, ridiculous, fantastic, unnatural improbable and unbelievable one. The learned defence counsel had suggested this plea to Muhammad Aslam, SI/SHO PW-10 but he turned down the suggestion. He did n6t find this version to be correct. Furthermore, it is not supported by any evidence. This plea does not help the appellant in any manner, ln our view he is fully responsible for committing brutal murder of an innocent lady in a gruesome manner. No extenuating circumstance was ever pleaded before us during course of arguments, ln our view he stood rightly convicted and punished.
17. Without determining financial condition of the appellant, heavy amount of Rs. 1-.0Q.000/- was imposed upon, the appellant and learned Trial Judge failed to mention the quantum of sentence to be undergone by the appellant in the event of non-payment of compensation amount. We feel that compensation amount is excessive. We reduce it to Rs. 50,000/- and in the eventuality of default in payment of said amount he shall undergo Simple Imprisonment for six months.
18. With the above modification, this appeal is dismissed. Death sentence awarded to Badshah Khan appellant is confirmed and murder reference is answered in the-affirmative.